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Rodriguez v. Powell

United States District Court, M.D. Georgia, Macon Division

January 31, 2019

HJALMAR RODRIGUEZ JR, Plaintiff,
v.
WILLIAM POWELL, et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a motion for partial summary judgment filed by Plaintiff Hjalmar Rodriguez Jr. (Doc. 235). It is RECOMMENDED that Plaintiff's motion be DENIED. Also before the Court is the Defendants' motion for summary judgment. (Doc. 233). It is RECOMMENDED that the Defendants' motion be GRANTED in part and DENIED in part such that (1) the Court grant summary judgment for Defendant Burnside on Plaintiff's deliberate indifference claim related to his hand injury, and that (2) the Court permit Plaintiff to proceed to trial on all remaining claims. Those remaining claims consist of: (A) an excessive force claim against Defendant Clupper; (B) retaliation claims against Defendants Clupper, Kyles, Powell and Logan; and (C) a deliberate indifference claim against Defendant Burnside related to an embedded bullet.

         In connection with review of the record, Plaintiff's motion to submit additional evidence (Doc. 286) is GRANTED. A second motion (Doc. 288) in which Plaintiff asks the Court to “consider[ Plaintiff's] already filed response and reply, ” is also GRANTED. Although it is not clear precisely what relief Plaintiff sought in this motion, Plaintiff correctly notes that the Defendants failed to file an amended transcript of Plaintiff's deposition as instructed. See (Doc. 287, p. 2).

         FACTS

         Plaintiff's claims in this action arise from three separate incidents. First, Plaintiff's excessive force claim and one of his deliberate indifference to medical needs claims relate to a hand injury that Plaintiff suffered on December 19, 2013, while incarcerated at the Georgia Diagnostic and Classification Prison (“GDCP”). Plaintiff alleges that Defendant Clupper slammed a “tray flap” onto Plaintiff's hand and that Defendant Burnside, a physician, failed to provide Plaintiff with adequate follow-up medical care.

         Second, in the days following the tray flap incident, Plaintiff alleges that Defendants Clupper and Kyles, as well as Defendants Powell and Logan, retaliated against Plaintiff for his use of the prison grievance system. See O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (“An inmate may maintain a cause of action for retaliation under 42 U.S.C. § 1983 by showing that a prison official's actions were the result of the inmate's having filed a grievance”) (internal punctuation omitted). According to Plaintiff, Defendant Clupper and Kyles's retaliatory acts consisted of (1) issuing a “falsified” disciplinary report that resulted in Plaintiff's transfer to a more restrictive cellblock, and (2) resorting to a disciplinary report, as opposed to some lesser disciplinary measure. Plaintiff claims that Defendants Powell and Logan retaliated by keeping Plaintiff in the more restrictive cellblock even after the disciplinary report was subsequently dismissed for “factual statement not being supportive.” (Disciplinary Report, Doc. 1-5, p. 1).

         Third, Plaintiff alleges that Defendant Burnside provided inadequate medical care for a bullet left in Plaintiff's upper left thigh after a shooting in 1997. According to Plaintiff, this bullet moved over time down Plaintiff's leg and toward the back of his knee, causing Plaintiff to suffer from pain on movement. Eventually, the bullet ruptured Plaintiff's skin, and Plaintiff was able to extract the bullet himself, although he developed an infection. See generally (Pl.'s Dep., Doc. 233-2, pp. 19-22). Plaintiff claims that Defendant Burnside was deliberately indifferent by delaying the surgical removal of the bullet and by prescribing only ibuprofen, a medication that causes Plaintiff painful side effects. The facts underlying all of these claims are set out in greater detail below.

         A. Hand Injury

         Plaintiff alleges that he suffered food poisoning after an evening meal on December 19, 2013, and that he asked Defendant Clupper, the officer on duty, for medical assistance. (Pl.'s Dep., Doc. 233-2, pp. 6-8). After Defendant Clupper ignored Plaintiff's requests for medical assistance “for about fifteen, twenty minutes, ” Plaintiff placed his right hand through the “tray flap, ” a 5-inch by 12-inch opening in his cell door. (Id., p. 7). According to Plaintiff, this act of “peaceful protest” was “done to get the OIC, the officer in charge, down to the dorm, ” so that Plaintiff could request medical assistance from that different officer. (Id.). A prison policy governing “Feeding/Handcuff Slot[s]” provides guidance on tray flap conduct, (Pl.'s Mot. for Partial Summ. J., Doc. 235-2, pp. 74-75), and Plaintiff appears to acknowledge that he violated at least the spirit of this policy, as it is written. See (Pl.'s Dep., Doc. 233-2, pp. 10-11). Plaintiff argues, though, that the policy was not enforced as written:

A. This policy … is never enforced. I've never seen it enforced …. It has never been enforced on me.
***
Q. You're saying usually how it would go, you would stick your hand in the flap, the officer in charge would come down, you would remove your hand, and then you would talk with the officer using that one inch space.
A. Right.
Q. That is typically how it would go?
A. Yes, ma'am.

         (Pl.'s Dep., Doc. 233-2, p. 11)

         In response to Plaintiff's act of placing his hand out of the tray flap opening “a little over my wrist, ” (Pl.'s Dep., Doc. 233-2, p. 9), the parties agree that Defendant Clupper closed the tray flap onto Plaintiff's hand. Defendant Clupper asserts that he used “positive pressure, ” meaning he gradually pressed the tray flap onto Plaintiff's hand, thereby pinching Plaintiff's hand between the flap and the cell door. (Defs.' Statement of Facts, Doc. 233-8, p. 3, ¶ 17). Plaintiff, by contrast, testified that Defendant Clupper “slam[med] that flap on my hand with his strength, ” causing Plaintiff to suffer from pain, swelling, bruising, and a broken bone. (Pl.'s Dep., Doc. 233-2, pp. 9- 10). While the record in this case contains no picture of the tray flap, Plaintiff describes it as a small, iron rectangle that opens by folding down. (Id., p. 7).

         The parties disagree as to whether Defendant Clupper warned Plaintiff prior to using force. Plaintiff asserts that Defendant Clupper gave a single instruction for Plaintiff to “get away from the flap, ” and then “without warning … closed the flap while my hand was still there and injured my hand.” (Id., pp. 7, 9). Defendant Clupper, by contrast, testifies that he instructed Plaintiff “several times” to remove his hand from the tray flap opening. (Clupper Aff., Doc. 233-3, ¶ 10). Defendant Clupper states that he resorted to force only “[w]hen it became clear that Inmate Rodriguez was not going to comply.” (Id., ¶ 11). Incident reports drafted by Defendant Kyles, the “OIC” who subsequently arrived on the scene, do not discuss instructions or warnings. See (Incident Report, Doc. 221-14, p. 2). (Supplemental Report, Doc. 221-11, p. 3). Plaintiff received a disciplinary citation for “fail[ing] to follow instructions, ” but that citation was later “dismissed due to charge and factual statement not being supportive.” (Disciplinary Report, Doc. 1-5, p. 1).

         After Plaintiff withdrew his hand from the tray flap opening, and after Defendant Kyles arrived on the scene, Plaintiff claims that he asked for, but did not receive, any medical assistance for his hand. (Pl.'s Dep., Doc. 233-2, p. 12). Defendant Kyles's incident report also indicates that Plaintiff received no medical attention: it states, “since the inmate was not in any distress at the time he could be checked in the morning.” (Incident Report, Doc. 221-14, p. 2).

         The next morning, on December 20, 2013, Plaintiff was transferred from his cell in cellblock B to a different cell with more restrictive conditions in cellblock E. (Pl.'s Dep., Doc. 233-2, p. 15). As discussed below, this transfer reflected Plaintiff's assignment to “Phase 4” of the GDCP's special management unit or SMU. See (SMU Privilege List, Doc. 1-4, p. 1). During the course of his transfer, Plaintiff contends that he walked by the prison medical facility and that a nurse, Mary Gore, visually inspected Plaintiff's hand but perceived no injury. Plaintiff describes the encounter as follows:

[T]o go from B Wing to E Wing, you have to cross from the east side to the west side, this real long hallway. You have to pass by medical. As I got to the door of medical, Mary Gore stepped out of medical and my hands were handcuffed behind my back. She simply looked behind my back, said he was all right, you go ahead.
So I didn't actually go in medical. I breezed [b]y medical and she looked at I guess -- looked behind me and said I was all right.

(Pl.'s Dep, Doc. 233-2, p. 15)

         The Court previously dismissed Plaintiff's deliberate indifference claim against Nurse Gore for failure to exhaust administrative remedies. See (Doc. 183), adopting as modified (Doc. 134).

         In the following months, Plaintiff claims that he submitted successive requests for medical care that went unanswered. (Pl.'s Resp., Doc. 281-1, p. 18 (citing Doc.116)). See also (Pl.'s Dep., Doc. 233-2, p. 16). One medical-service request dated February 13, 2014, states: “My hand does not function accordingly it hurts to bend … my fingers i.e. right pinky and ring finger.” (Doc. 116-5, p. 3). The record also contains a prison grievance in which Plaintiff complains that Nurse Gore “is not a doctor nor does she have x ray vision.” (Unnumbered Grievance, Doc. 40-9, p. 2). The Court previously ruled that this grievance was not credible as to the issue of exhaustion of administrative remedies. See (Doc. 183, p. 9, n. 2).

         No evidence suggests that Defendant Burnside, a GDCP physician, had contemporaneous knowledge of either Plaintiff's hand injury or Plaintiff's prison grievances and medical-service requests prior to a December 9, 2014 treatment session.[1] See (Medical Encounter Form, Doc. 113-2, p. 9). At that treatment session, Plaintiff claims he received care only for symptoms associated with the bullet in his leg. See (Pl.'s Dep., Doc. 233-2, p. 17). Plaintiff contends that Defendant Burnside “refused to [e]ntertain[] the issue in reg[ard] to my hand, ” and that he instead directed Plaintiff to “submit[ a] separate medical request” as to that issue. (Grievance No. 188043, Doc. 114-2, p. 10). There is no indication that Plaintiff had sought medical care for his hand during an earlier September 2014 treatment session. See (Progress Record, Doc. 113-2, p. 7). A later record from a subsequent August 2015 treatment session shows that Defendant Burnside provided medical care for both Plaintiff's hand and leg without any discussion of a “single issue rule.” See (Medical Encounter Form, Doc. 113-2, p. 12). Cf. (Pl.'s Dep., Doc. 233-2, p. 17) (“He said he would only see me about one medical issue at a time”).

         After the December 9, 2014 treatment session, Plaintiff returned to Defendant Burnside on March 10, 2015, for hand-related medical care. (Burnside Aff., Doc. 113-2, ¶ 13). The treatment note from that March 2015 session records Plaintiff's report of suffering a hand injury around one year before and also records Plaintiff's complaints of resulting hand pain, stiffness, and cramping when writing. (Medical Encounter Form, Doc. 113-2, p. 10). (Pl.'s Dep., Doc. 233-2, p. 18). The treatment note appears to state “No Problem Seen, ” but it also shows that Defendant Burnside ordered an x-ray, which revealed an “Old healed boxer's fx 4th metacarpal, ” along with “No acute fx, dislocation or joint disease.” (Radiological Consultation dated March 12, 2015, Doc. 113-2, p. 11). The record gives no indication of how old Plaintiff's healed metacarpal fracture was.

         Defendant Burnside contends that Plaintiff “wanted me to re-break and re-set his finger, ” but that Defendant Burnside refused this course of treatment. (Burnside Aff., Doc. 113-2, ¶ 15). Plaintiff disputes Defendant Burnside's account. See (Pl.'s Dep., Doc. 233-2, p. 18). The record indicates that Plaintiff refused to accept any medication during the March 2015 treatment session, although as discussed below, Plaintiff's refusal was based on his aversion to ibuprofen, which according to Plaintiff is “all Burnside will prescribe for pain and/or anything.” (Pl.'s Responsive Facts, Doc. 281-2, p. 15). Plaintiff acknowledges, however, that he had regular access to aspirin in his cellblock. See (Pl.'s Dep., Doc. 233-2, p. 19).

         B. Retaliation

         After the tray flap incident, Defendants Clupper and Kyles issued a disciplinary report charging Plaintiff with “fail to follow instructions.” (Disciplinary Report No. 445395, Doc. 1-5, p. 1). The disciplinary report, served upon Plaintiff on December 20, 2013, included the following factual statement:

On 12-19-13 at 1925 hrs I Officer Clupper, Derek was picking up trays[.] Inmate Rodriquez Hjalmar #1036561 tried to force the flap open as it [was] being closed and got his finger tips caught between the flap and the door. I Officer Clupper opened the flap far enough for Inmate Rodriquez to move his fingers out while instructing him to remove his hands from the flap. After the flap was closed Inmate Rodriquez started hollering “I'm going to get your fat ass, I'm not going to be in here forever and I'm going to blow your head off with a shotgun.” “I'm going to get all of yall.[”] OIC was notified of the event. Inmate Rodriquez remains in cell LD-B-112 pending disciplinary investigation.

(Id.)

         As Plaintiff notes, the disciplinary report did not charge Plaintiff with “verbal threatening.” ...


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